J.B Koshy, J.:— A learned Single Judge of this Court referred this matter to the Division Bench as in the earlier judgment of this Court in P.K Alavi v. The District Collector & Ors (ILR 2007 (4) Ker. 221 : 2007 (4) KHC 142) (same as Abdul Samad v. State Of Kerala (2007 (4) KLT 473) while holding that S. 102 of the Code of Criminal Procedure is not applicable when vehicles transporting sand illegally is seized under S. 102 Cr. P.C it was not brought to the notice of this Court that under S. 24 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (in short ‘the Sand Act’) all offences are cognizable. If the offences are cognizable, the police cannot refuse to register a crime when they get information regarding the commission of a cognizable offence. Consequently, police is bound to report the seizure of the vehicle to the Magistrate having jurisdiction as provided under S. 102 Cr. P.C At para. 6 of the judgment it was held as follows:

“6. Based on the decision of this court in Rahim v. State Of Kerala (2002 (3) KLT 340) it is argued that as soon as the vehicle is seized, report should be fded to the court under S. 102 of the Code of Criminal Procedure. We are afraid that such an interpretation is not possible because what is to be done with the seized vehicle is very clearly mentioned under Rr. 27 and 28. It is true that for imposition of penalty like imprisonment and imposition of fine, only court can take action on a complaint duly fded and it is the power of the court to impose imprisonment or fine under S. 20 of the Act. For that seizure of the vehicle is not necessary. Hence, vehicles which are transporting sand illegally can be seized under S. 23 of the Act and not under S. 102 of Cr. P.C The power to seize is given to revenue officials and Police officers and when vehicles are seized under S. 23 of the Act, the procedure to be followed is also prescribed in the statutory rules framed under the Act itself. It is a self contained Act. Further, under which circumstances police officers should seize the vehicles is specifically mentioned in S. 102 Cr. P.C and conditions are different with regard to seizure of vehicle involved in illegal sand mining which is made illegal by the provisions of the Act and, therefore, S. 102 Cr. P.C is not applicable when the vehicle is seized as per the provisions of the Act. Hence, the decision in Rahim v. State Of Kerala (2002 (3) KLT 340) is not correctly decided. As soon as the seizure is effected, further procedures to be taken are very specifically mentioned in Rr. 27 and 28. The above power is in addition to the power of the court in imposing penalty under S. 20 and such offence can be taken cognizance by the court only if authorised officer as mentioned in S. 25 files a complaint and those two provisions are clearly independent as legislature thought it fit, if necessary to confiscate the vehicle if the vehicle is involved in illegal sand mining. Even though District Collector has got power to confiscate the vehicle, rules provide that on payment of the amount as fixed under R. 27(3), he is bound to release the vehicle………”

2. In para. 5 of the order of reference, the learned single Judge observed as follows:

“5. It is true that the Division Bench in Alavi's case has taken such a view. But then, it appears that the attention of the Division Bench was not brought to one aspect of the matter. Under S. 23 of the Act whoever transports sand without complying with the provisions of the Act is declared to be liable to be punished and the vehicle used for the transportation is also liable for seizure by the police or revenue officials. The liability for punishment can arise under S. 20 of the Act as per which whoever contravenes arty of the provisions of the Act or the Rules made thereunder is liable to be punished with imprisonment for a term of which may extend to two years or with fine which may extend to twenty five thousand rupees or with both. Under S. 24 of the Act all offences under the Act are declared to be cognizable. Thus any person who is transporting sand without complying with the provisions of the Act is committing an offence punishable under S. 20 of the Act and liable to be punished and so declared under S. 23 itself. Such offence being a cognizable offence, in my view, the police cannot refrain from registering a crime if they happen to stumble upon a vehicle illegally transporting sand in contravention of the provisions of the Act. If a complaint alleging the commission of a cognizable offence is given to an officer in charge of a police station, and such officer has no other alternative except to register a crime, then it is all the more necessary that a police officer who comes across the commission of a cognizable offence should register a crime. In other words, every act of transporting of sand without complying with the provisions of the Act involves the commission of a cognizable offence punishable under S. 20 of the Act for which the registration of crime is inevitable. If so, the police officer who is bound to register a crime is obliged under S. 102 Cr. P.C to report the seizure of the vehicle to the Magistrate having jurisdiction. In areas where the Special Act is silent S. 4(2) Cr. P.C should govern the procedure obliging the police officer to comply with S. 102 Cr. P.C Otherwise, the Magisterial control over the police will be rendered meaningless leading to unbridled exercise of powers and consequent misuse of authority by the police. This aspect of the matter does not appear to have been highlighted before the Division Bench.”

3. S. 24 of the Sand Act cannot be read in isolation with S. 25. We extract the above sections below:

“24. Offences under this Act to be cognizable:— Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), all offences under this Act shall be cognizable.

25. Cognizance of offences:— No court shall take cognizance of any offence punishable under this Act, except upon a complaint in writing made by a person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology.”

4. Aplain reading of the above provision will show that even though by S. 24 all offences under the Act are made cognizable, no court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology. A ‘complaint in writing’ by the authorised officer etc. is the only condition for taking cognizance as provided in S. 25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the court may take cognizance. But, the court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under S. 173(2) of the Cr. P.C after investigation by police. S. 20 deals with penalty for the offence. Maximum period of imprisonment, apart from fine that can be imposed, is only two years. In Alavi's case we have considered the scope of S. 23 read with The Kerala Protection of River Banks and. Regulation of Removal of Sand Rules (for short ‘the Rules’) and held that the Act and Rules should be read together and harmoniously interpreted and Collector has got power to confiscate and sell the vehicle if the amount fixed by him is not paid to the River Management Fund within areasonable time. Statutory rules framed in accordance with the Act also can be referred in interpreting the Statute so long as rules are not inconsistent with the Act. (See: Gujarat Pradesh Panchayat Parishad v. State of Gujarat ((2007) 7 SCC 718). For an effective understanding, we may extract S. 23 of the Act, Rr. 27 and 28 of the Rules:

“S. 23. Confiscation of vehicles:—Whoever transports sand without complying with the provisions of this Act shall be liable to be punished and the vehicle used for the transaction is liable for seizure by the police or Revenue officials.”

“R. 27. Procedure for confiscation of vehicle:—(1) The police or revenue officials shall seize the vehicle used for transporting sand in violation of the provisions of the Act and these Rules.

(2) In the case of seizure of vehicle under sub-s. (1), a mahazar shall be prepared in the presence of two witnesses regarding the vehicle and one copy of the same shall be given to the person possessing the vehicle at the time of seizure and one copy to the District Collector.

(3) The vehicle may be returned if the owner of the vehicle or the possessor remits an amount towards River Management Fund equal to the price fixed by the District Collector with fine within seven days of seizure.”

R. 28. Sale of the vehicle seized:—

(1) The District Collector shall consider every objection submitted withinseven days of seizure of any vehicle under R. 27 and the decision of District Collector thereon shall be final.

(2) In the case of sale of the vehicle under sub-section (1), if the fine and amount under sub-s. (3) of S. 27 of these rules has not been remitted, the District Collector shall sell the vehicle by auction.

(3) The amount received from auction under sub-s. (2) shall be credited to the River Management Fund after deducting “the expenditure of auction.”

5. Rr. 27 and 28 clearly lay down the procedure to be complied with by the police officer or revenue officer who seizes the vehicle for illegal transport of sand. The police officers and revenue officials shall seize the vehicle used for illegal transportation of sand under R. 27 of the Rules. Under S. 23 not only police officers, but also revenue officers may seize such vehicles. After seizure what is to be done with the vehicle and procedure to be adopted by the officers are clearly laid down in Rr. 27 and 28. The seizure is, therefore, to be effected under the provisions contained in the Sand Act and Rules and not under S. 102 Cr. P.C On seizure, the following procedures have to be complied with:

1. The officer who is seizing the vehicle should prepare a mahazar.

2. The said mahazar should be signed by two witnesses.

3. A copy of the mahazar should be given to the person possessing the vehicle at the time of seizure.

4. A copy of the mahazar should be given to the District Collector.

5. The owner of the vehicle or the person from whom the vehicle was seized can file objection.

6. The District Collector is bound to consider the objection filed within seven days of seizure.

7. In Alavi's case, we have also held that as part of principles of natural justice, District Collector should give an opportunity of hearing also to the person who filed the objection.

8. The District Collector is bound to take a decision. If the vehicle is not found involved in illegal transport of the same, he is bound to return the same.

9. If it is found that the vehicle was transporting sand illegally, he has to fix an amount equivalent to the prize to be paid to the River Management Fund.

10. The District Collector is bound to return the seized vehicle if the amount fixed by the Collector is paid by the owner in possession of the vehicle as the case may be.

11. If the amount fixed is not paid within a reasonable time, he can sell the vehicle in auction.

12. The amount realised from the auction shall be credited to the River Management Fund.

6. A plain reading of the Sand Act and Rules together will show that in the matter of seizure, no report need be filed to the Magistrate as special procedure is laid down when seizure is effected in view of S. 23 of the Act. There is no statutory compulsion for filing such a report or producing the vehicle before the Magistrate under any of the provisions contained in the Cr. P.C It is true that ‘offence’ as defined under S. 2(n) of the Cr. P.C includes offences mentioned in special law also. Ss. 4 and 5 of Cr. P.C make the procedure laid down in the Code applicable to all offences under the Indian Penal Code unless special statute provides a special or separate procedure. Ss. 4 and 5 of Cr. P.C are as follows:

“4. Trial of offences under the Indian Penal Code and other laws:— (1) All offences underthe Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

5. Saving:— Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

7. It was held by the Apex Court in Khatri v. State of Bihar ((1981) 2 SCC 493 : AIR 1981 SC 1068) that in view of S. 4 of Cr. P.C the provisions of the Criminal Procedure Code are applicable when the offence under the Indian Penal Code or under any other law is being investigated or enquired or proceeded with trial or otherwise dealt with. But, if a special law provides a special procedure, that procedure will prevail as held by the Apex Court in Directorate of Enforcement v. Deepak Mahajan ((1994) 3 SCC 440 : AIR 1994 SC. 1775) and A.R Antulay v. Ramdas Sriniwas Nayak ((1984) 2 SCC 500 : AIR 1984 SC 718). Apex Court in Major G.S Sodhi v. Union of India (1991 Crl. L.J 1947 SC) held that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with the offence, the general power under the Code is subject to such special enactment and in interpreting the scope of such statute that dominate purpose of enacting the statute also has to be borne in mind. (See also: Jomon v. State of Kerala (1987 (2) KLT SN 37 (C. No. 52) : 1987 (2) Crimes 920) and Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court (1954 Crl. L.J 460 SC). When a special power is conferred under S. 23 of the Sand Act read with Rr. 27 and 28 for seizure and a specific procedure to be followed after the seizure, that procedure has precedence over the general power and procedure. The application of maxim Generalia specialibus non derogant (general statements or provisions do not derogate from special statements or provisions). On the other hand, specialia derogant generalibus (special provisions derogate from general). If a special provision or procedure is made on certain matter, that matter is excluded from general provision as held by the Supreme Court in Gadde Venkateswara Rao v. Government of A.P (AIR 1966 828). In Jasbir Singh v. Vipin Kumar Jaggi (2001 (3) KLT 346 (SC) : (2001) 8 SCC 289 : AIR 2001 SC 2734) it was held by the Apex Court that S. 64 of the NDPS Act will prevail over S. 307 Cr. P.C, 1974 as it is a special provision. Same principle was followed in P.V Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda ((2002) 5 SCC 548 : AIR 2002 SC 2445). In this connection, we also refer to paras. 60 and 61 of the Apex Court judgment in Ghaziabad Zilla Sahkari Bank Ltd. v. Addl. Labour Commissioner (2007 AIR SCW 956).

8. Now, we shall consider the arguments based on S. 24 of the Sand Act making all offences under the Act cognizable. A ‘cognizable offence’ is defined in S. 2(c) of Cr. P.C as follows:

“(c) ‘cognizable offence’ means an offence for which, and ‘cognizable case’ means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;”

9. Therefore, making the offences under the Sand Act cognizable, police officers will get the power to arrest without warrant. Chap. XI of Cr. P.C deals with preventive action to be taken by police to prevent cognizable offences. Chapter XII provides the procedure for information in investigation of the offence by the police. S. 154(1) of Cr. P.C reads as follows:

“154. Information in cognizable cases:— (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”

10. Remedy of a person, if police is not registering a case is mentioned in S. 154(3). It was held by the Apex Court in State of Haryana v. Ch. Bhajan Lal (1992 Supp (1) SCC 335 : AIR 1982 SC 604) that in a cognizable case police officer is bound to record every information relating to the commission of a cognizable offence and to register a case. In para. 32, it is held as follows:

“32. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of S. 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.”

11. This view was reiterated by the Supreme Court in Ramesh Kumar v. State (N.C.T of Delhi) (2006 (2) KLT 404 (SC) : 2006 AIR SCW 1021). There is substantial difference between the term ‘cognizable offence’ and ‘cognizable case’ as can be seen from the definition under S. 2(c) of Cr. P.C Chap. XII of Cr. PC. provides for proceedings for information to investigate a case. S. 156 provides for police officer's power to investigate and S. 157 provides for procedure for investigation and S. 158 provides for filing of final report. The above would show that police has to make investigation after registering the case and file report to the Magistrate. Chap. XIV and XV state how cognizance is taken by Magistrates. In cognizable cases, cognizance may be taken on a police report. Here, written complaint is to be filed by District Collector or Geologist or authorised officer and in the absence of such written complaint by authorised officer etc., no cognizance can be taken, even if police registered an F.I.R

12. It is argued by the learned Government Pleader that ‘cognizable offence’ means an offence for which a police officer may arrest without warrant. Even if a crime is registered in respect of a cognizable offence under the Sand Act, the matter cannot be proceeded with and the offender cannot be punished under S. 20 of the Sand Act, because as per S. 25 of the Act no court shall take cognizance of any offence punishable under this Act except upon a complaint in writing made by a person authorised in this behalf by the Government or the District Collector or a Geologist of the Department of Mining and Geology. If the police officers are also authorised officers, they can very well file a complaint before the court, but, they need not file a final report after investigation under S. 173(2) of Cr. P.C Even when police officer seizes the vehicle by using the power under S. 23, Magistrate cannot take cognizance of the offence unless a complaint is filed by the authorised officer etc. as provided under S. 25.

13. Assuming that being a cognizable offence in view of S. 24, on getting information by the police officer, he has to register a case, that will not make obligation to follow S. 102. Seizure of the vehicle under S. 23 of the Act can be done either by the police officer or revenue officials. If revenue officials seize the vehicle and report the matter to the District Collector without intimation of police, question of filing F.I.R or complying with S. 102 of Cr. P.C will not arise. S.J 02 is applicable in the seizure of vehicle or property whether offence committed is cognizable or non-cognizable. S. 102 of Cr. P.C reads as follows:

“102. Power of police officer to seize certain property:—

(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of apolice station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub-s, (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the properly in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to gi ve effect to the further orders of the Court as to the disposal of the same.”

14. But for S. 102, under general law, there is no power for the police officer to seize the vehicle or property involved in a suspected crime or stolen property. S. 102 confers power and then prescribes the procedure to be adopted thereafter with regard to the property seized as per the power conferred under S. 102(1). Here, the vehicle involved in the illegal transport of sand is seized not under the power of the police or revenue officer under S. 102, but, under S. 23 of the Sand Act read with R. 27. Rr. 27 and 28 prescribe the procedure to be adopted with regard to seizure of vehicles. It is true that we Judges while hearing criminal matters mainly deal with offences under the Indian Penal Code and there is a chance to be obsessed by the provisions of Cr. P.C notwithstanding the specific provisions in the special Statute. We have seen that generally Cr. P.C is applicable during enquiry, investigation and trial of offence under special Act also, but, if a special procedure is provided, only that procedure is to be followed while exercising power specifically given under the Special Act. In this connection, we refer to the decision of this Court in Sasidharan v. Forest Range Officer (1999 (2) KLT 836) considering a case of seizure of vehicle transporting illegal timber. Under S. 52(2) of the Foresi Act, 1961, power is given to the forest officers and police officers to seize the transported timber or forest produce and vehicles used for the same. Sub-s. (2) sped lically provides that immediately on such seizure, a report of such seizure shall be made to the Magistrate. Here, such a procedure is significantly absent. This court held that failure on the part of the authorised officer to report the seizure of the vehicle and timber to the Magistrate will not affect the procedure for confiscation of the same under S. 61A of the Forest Act as power to confiscate is an independent power for achieving the object of the Act. Power of disposal orforfeiture of theproperty involved in the offence is different from confiscation proceedings. Considering the provisions of S. 59-A (3) of the Forest Act, 1927, Apex Court in State Of W.B v. Gopal Sarkar ((2002) 1 SCC 495) held that power of confiscation of vehicle exercised by the forest officer is independent of any proceedings of prosecution initiated in respect of the forest offence committed. Here also, confiscation proceedings is an independent power. Power to take criminal prosecution upon written complaint is entirely different. In Divisional Forest Officer v. G.V Sudhakar Rao ((1985) 4 SCC 573), Supreme Court observed as follows:

“The conferral of power of confiscation of seized timber or forest produce and the implements etc. on the authorised officer under sub-s. (2-A) of S. 44 of the Act on his being satisfied that a forest offence had been committed in respect thereof, is not dependent upon whether a criminal prosecution for commission of a forest offence has been launched against the offender or not. It is a separate and distinct proceeding from that of a trial before the court for commission of an offence. Under sub-s. (2) of S. 44 of the Act, where a Forest Officer makes a report of seizure of any timber or forest produce and produces the seized timber before the authorised officer along with a report under S. 44(2), the authorised officer can direct confiscation to Government of such timber or forest produce and the implements etc., if he is satisfied that a forest offence has been committed, irrespective of the fact whether the accused is facing a trial before a Magistrate for the commission of a forest offence under Ss. 20 or 29 of the Act”.

15. In State of M.P v. S.P Sales Agencies ((2004) 4 SCC 448), the Apex Court held as follows:

“11. In the case of State Of W.B v. Gopal Sarkar ((2002) 1 SCC 495) while noticing the view taken in the case of G.V Sudhakui Rao ((1985) 4 SCC 573) this Court had reiterated that the power of confiscation is independent of any criminal prosecution for the forest offence committed. This being the position, in our view, the High Court has committed an error in holding that initiation of confiscation proceeding relating to Kattha was unwarranted, as no criminal prosecution was launched”.

16. We have seen that provisions prescribed under S. 20 of the Sand Act and seizure and confiscation proceedings under S. 23 of the Sand Act read with Rr. 27 and 28 of the Sand Rules are independent provisions. Prosecution proceedings can be commenced only upon filing a written complaint by the authorised officer. Vehicles are seized under S. 23 and not under the powers given to police officer under S. 102 and separate provision is given under the Sand Act and Rules regarding the procedure to be adopted after the seizure. Let us assume for the time that being a cognizable offence, police is bound to register the case and in view of S. 102 Cr. P.C, seizure of the vehicle was to be reported to the Magistrate, then also, there is no power for the Magistrate to release the property to the parties. Petitioner wants interim release of the vehicle instead of being again prosecuted apart from facing confiscation proceedings. He has not approached the court with a request to prosecute him. Even if the seizure is reported to the Magistrate, Chap. XXXIV is not applicable. Chap. XXXIV (Ss. 451 to 459) is applicable to disposal of property by the Magistrate. S. 457 prescribes that the Magistrate can make appropriate order for disposal of the property or entrustment of the property to the person entitled when the seizure is reported to the Magistrate. Here, property seized under S. 23 and R. 27(1) can only be disposed of as provided under Rr. 27 and 28 of the Sand Rules and is liable to be sold if the amount fixed by the Collector is not paid within a reasonable time. In the case of seizure by police, mahazar shall be prepared and a copy shall be given to the District Collector. The Rules do not provide that the seizure shall be reported to the Magistrate. Provision is made for return of the vehicle or its sale under Rr. 27 and 28.

17. In State of Karnataka v. K. Krishnon ((2000) 7 SCC 80 : AIR 2000 SC 2729), Supreme Court considered a similar question regarding the seizure of the vehicle and forest produce used in connection with a forest offence. Even though it was prescribed in the Karnataka Forest Rules that the seizure of such vehicle and forest produce should be reported to the Magistrate's Court (akin to S. 102), Apex Court held that since there is power of confiscation by the authorised officer, it cannot be released by the Magistrate until all proceedings are over. Apex Court held as follows:

“Liberal approach in the matter with respect to the property seized, which is liable to confiscation, is uncalled for as the same is likely to frustrate the provisions of the act. Before passing an order for releasing the forest produce or the property used in the commission of the forest offence, the Authorised Officer or the Appellate Authority has to specify the reasons which justify such release, apparently, prima facie excluding the possibility of such forest produce or the property being confiscated ultimately. Generally, therefore, any forest produce and the tools, boats, vehicles, catties, etc. used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the Appellate Authority to pass appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal upproach in the matter would perpetuate the commission of more offences with respect In the forest and its produce which, if not protected, is surely to affect the mother-ear??? and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any.”

18. Same view was again expressed by the Supreme Court in State Of Karnataka v. K.A Kunchindammed. ((2002) 9 SCC 90). Apex Court observed as follows:

“23. The Karnataka Forest Act is a special statute enacted for the purpose of preserving the forests and forest produce in the State. The Scheme of die Act, as expressed in the sections, is to vest power in the Authorised Officers of the Forest Department for proper implementation/enforcement of the statutory provisions and for enabling them to take effective steps for preserving the forests and forest produce. For this purpose, certain powers including the power of seizure, confiscation and forfeiture of the forest produce illegally removed from the forests have been vested exclusively in them. The position is made clear by the non-obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary corollary of such provisions is that in a case where the Authorised Officer is empowered to confiscate the seized forest produce on being satisfied that an offence under the Act has been committed thereof the general power vested in the Magistrate for dealing with interim custody/release of the seized materials under Cr. P.C has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate the seized forest produce is vested in the Authorised Officer under the Act and if he finds that such power is vested in the Authorised Officer then he has no power to pass an order dealing with interim custody/release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody/release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a consequence is to be avoided.

24. From the statutory provisions and the analysis made in the foregoing paragraphs position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case, it is the Authorised Officer who is vested with the power to pass order of interim custody of the vehicle and not the Magistrate. The High Court was in error in taking a view to the contrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis”.

19. In Shambhu Dayal Agarwala v. State of W.B (1990 (2) KLT SN 2 (C. No. 2) SC : (1990) 3 SCC 549) the Supreme Court interpreted sub-s. (2) of S. 6-A of the Essential Commodities Act vis-a-vis S. 6-E thereof and held that there could be no question of releasing the commodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for confiscation stood contemplated. The Hon'ble Supreme Court observed that such a view would render cl. (b) of S. 7(1) totally nugatory. It was opined as follows at para. 8:

“It seems to us that S. 6-E is intended to serve a dual purpose, namely (i) to prevent interference by courts etc., and (ii) to effectuate the sale of the essential commodity under sub-S. (2) and the return of the animal, vehicle etc. under the second proviso to sub-s. (1) of S. 6-A. In that sense S. 6-E is complimentary in nature.”

20. Following the above in State of WB. v. Sujit Kumar Rana ((2004) 4 SCC 129), it was held that jurisdiction of Magistrate's Court and High Court under S. 482 for giving interim custody of the vehicle seized, till confiscation proceedings are over is limited. Same procedure shall apply here also. The Act itself was passed to prevent illegal mining of sand from river causing environmental problems. Therefore, Magistrate's Court cannot grant interim custody of the vehicle under the provisions of Cr. P.C It was also observed in the case that by way of judicial review, High Court can order return of the vehicle if the order of the authorised officer in not releasing the vehicle is patently illegal resulting in failure of justice.

21. There is also no reason for the apprehension by the learned single Judge that if the procedure under S. 102 is not complied with, Magisterial control over the police will be rendered meaningless leading to unbridled exercise of power and consequential misuse of the authority by police. As we have seen earlier that vehicles involved in the offence under the Sand Act are not seized by virtue of power under S. 102 Cr. P.C But, it is on the basis of conferment of power under S. 23 of the Sand Act and R. 27. Not only the police officers, but also revenue officers are given power to seize the vehicles involved in illegal sand transportation. Police or revenue officer on seizing the vehicle is bound to give copy of the mahiizar prepared for seizure to the District Collector immediately and also to the person in possession of the vehicle. The person in possession of the vehicle or any person purported to be the owner has got a right to file objection before the Collector to decide the matter and to fix the amount to be paid to the River Management Fund for releasing the vehicle. If the amount fixed is not paid within a reasonable time, Collector can sell the property. Here, seizure will be brought to the notice of the District Collector and there is no reason to apprehend that the District Collector will not do his duty properly or will allow the police to misuse the powers. The District Collector who is Executive District Magistrate is entrusted with various powers under the Cr. P.C as well as under various Statutes. (See: Chapter X of Cr. P.C, and provisions under Electricity Act etc.) It cannot be assumed that only Judicial Magistrate can effectively control the police or prevent any misuse of the powers by the police etc. In any event, if they commit any illegality or impropriety, power of judicial review is still there. On the facts of this case, Magistrate rightly refused to order for interim release of the vehicle. We see no reason to interfere in the same. But, in view of the delay in fixing the amount to be paid for release of the vehicle by the Collector, we have already granted interim release of the vehicle on condition of depositing Rs. 25,000/- and executing a bond for producing the vehicle before the Collector as and when required. It is for the Collector to pass orders as provided under the Sand Act and Rules made thereunder as expeditiously as possible.

22. The Criminal Revision Petition is disposed of.